Introduction to the Study of Law

By Dr. Felipe de Jesús Alvídrez Fierro

In this important work, Dr. Felipe Fierro offers a comprehensive view on the subject of Introduction to the Study of Law, in which he revives the use of Gnoseology, Philosophy, History and Logic as Auxiliary Sciences; and exposes how the abandonment of such has contributed to the exponential growth of Skepticism and Relativism, currently prevailing in the legal world. The above, through extensive experience in teaching Law from the Aristotelian-Thomistic platform, based on the elementary assumption that we must first prove the existence of the object of study, and contrast main legal branches in topics such as: what is Law?, why is Science?, what are Law, Justice, Facultative rights and the Common Good?; supported by extensive and select bibliography. In addition, the being, nature, concept, essence and properties of the sources, fundamentals and classification are described. But important elements such as knowledge, order, principles, Jurisprudence, and Natural law, fundamental legal concepts, the legislative process, the Constitution, interpretation and others are not absent. Morality and Legal Law are obligatory markers, which although considered in their own field, are not excluded, but different as to object and method. Predominantly, Justice is exposed as one of the great values of the Law, and main theories in order to offer future lawyers the basis regarding the current Science of Law and its significance.

• Language: English
• Publisher: Palibrio
• Release date: Apr 28, 2018
• ISBN: 9781506520476

Dr. Felipe de Jesús Alvídrez Fierro

Dr. Felipe de Jess Fierro Alvdrez, has been granted Degrees in Law and Philosophy, a Masters Degree in Tax and Political Law, and a PhD in Law by the Autonomous University of Chihuahua (UACh). He attended various academic courses in Mexico, Spain, the United States and England, and has been an active faculty member for over 30 years in the Schools of Accounting and Administration, Engineering and Law, part of UACh as well. He has published articles in specialized legal and communication journals in Mexico and abroad, as well as collaborating and directing for various media outlets.

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Copyright © 2018 by Dr. Felipe de Jesús Fierro Alvídrez.

Charlotte Mary Smith, official translator.

Juan Iosa, corrector of style and supervision of the philosophical content.

Ivan Raul Rodríguez, style correction.

Miguel Fierro Serna y Daniela González Estrada, coordinación de supervisión.

Library of Congress Control Number:                  2017908205

ISBN:                      Hardcover                     978-1-5065-2042-1

                                 Softcover                      978-1-5065-2043-8

                                 eBook                           978-1-5065-2047-6

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

Rev. date: 26/04/2018

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INDEX

Dedication

Presentation

As An Introduction

CHAPTER I:   The Science of Law

Looking for a profound and true response to the question: What is law?

Does Law exist? If it exists, what is it? Can we know it?

The juridical being or entity, the essence and the reality: the basic points

Knowledge of Law as a science

How can the existence of the legal entity and its essence be demonstrated?

How do we separate the general entity from the legal entity?

What is the relationship between the legal entity, the substance and the accident?

Learning to understand Law

General classification of knowledge

1.- Common knowledge

2.- Scientific knowledge

Knowledge of Law, relative or absolute?

Let us distinguish between legal science, the law, justice and entitlements

What is the science of law?

Is the character of legal science theoretical or practical?

What is the specific object of the science of law?

3.- Philosophical knowledge

4.- Theological knowledge

Without man there is no law

Order

Law as a theory or as a science?

The method of the science of law

What the law really is?

The legal entity: substance or accident?

The principles

The first principles of science

a)   The principle of identity: what is, is.

b)   Principle of contradiction. The same thing cannot both be and not be

c)   Excluded third. There is no middle ground between being and not being

d)   Principle of end. All agents act towards an end

e)   Change needs the being. All change requires a being to change

f)   Principle of fundamentality. Every being has either in itself or in another being, sufficient reason for its being

g)   Causality of being. Every being which begins to exist, has a cause

h)   Principle of substantial reality.

i)   Accidental reality. Every accident supposes a substance.

j)   Principle of truth: all entities are cognoscible and therefore true.

Chaos in law

CHAPTER II:   Juridical Law

The law, a retrospective overview

Which law are we talking about when we talk about the law?

Eternal law

Divine law

Moral law; its position as regards ethics and juridical law

What is the law juridically? Its rules of veracity

1)   Conjunction of norms; existent, with identity or being.

2)   Norms sustained in order

3)   Founded in reason and natural order

4)   Issued by a legitimate authority

5)   Known by the obligated party

6)   Directed towards justice

7)   Aimed towards common good

What is natural law?

How do we demonstrate the existence of natural law?

Differences between natural law and moral law

What is the end of natural human law?

Morality, its relation to juridical law

What is moral law?

But what are we referring to when we talk of moral acts?

Without intention there is no act

What is morality founded in?

Autonomous, personal or conscious morality

Obligation and duty, the basis of morality

Morality leads to virtue

The law, duty and obligation, what is more important?

Subordination of law to morality

The classifications of the law

Juridical law, its divisions

Ancient Greece

Rome; natural, public and private law

Cicero

The Digesto

Thomas Aquinas: natural law, public law, private law, foreign law and family law

Domingo de Soto, similarity between natural and positive law

Fray Luis de Leon, separation of natural law and law of peoples

Francisco Suárez, natural law or law of peoples and civil law

How should we classify the law?

Classification of laws for first, second, third and fourth generation rights

Future rights

CHAPTER III:   Foundation and sources of law

The formalist division of the sources

Legal gnoseology and the foundation of law, Iusnaturalism, content and limitations

Aristotelian/Thomist viewpoint

Gnoseological and relativist theories of law

Analysis of the Foundations of Law: Positive Theories

Positivism

Austin’s positivism; sovereign command, the source of law

Hans Keslen’s Pure Theory of Law: the law is founded on the law

Herbert Lionel Adolphus Hart; founding the law in the rule of recognition

Ronald Dworkin; judges as the source of the law

Critique of positivism as foundation of law

A Three-Dimensional Theory of Law, Integral Law and the Theory of the Three Circles

Criticism of the Three-Dimensional, Integral and Circles theories of law

Critical Legal Studies: the fight against power as source of law

Critique of Critical Legal Studies?

Legal realism, more than the norms; the facts: incomplete law

Is the law based only in facts?

The economy as the foundation of law:

Can the economy be the basis of or the source of law?

Law and literature

Is literature a source of law?

Race, the foundation of law: Critical Race Theory

Can race be the foundation of Law?

Feminism as a source of law

Can we uphold a theory of law based in the difference between men and women?

Language and its meanings: Analytical Theory of Law

Is language the source or the foundation of law?

Autopoietic systems: Niklas Luhmann

Can we sustain the law in the Luhmannist structure?

Reason and natural order, the real sources of law

The traditional classification of the sources; formal, material, historical and social

Sources of Law based on its causes: formal, material, efficient and final

Principle of unity of causes

The validity, positivity and efficiency of the norm

a)   The validity.

b)   Positivity

c)   Efficiency:

CHAPTER IV:   Fundamental legal concepts

The categories of law

The individual and personality

What is the person?

When do rights of men arise?

Moral persons

Subjective rights

Entitlements or personal rights as opposed to subjective rights

The objective right

Foundation of entitlements or personal rights

The sanction

Legislation as a source of the law

Hierarchy and order

Custom as the source of the law

The constitution as the source of the law

a)   The concept of constitution

b)   Is the constitution the most important set of norms and principles of a country?

c)   Constitution and constitutionalism

Classifications of constitution

a)   Traditional criteria

b)   Rigid and flexible

c)   Wheare classification

d)   Classification of C. F. Strong, or the theory of nature.

e)   S. S. A. Smith

f)   Leslie Wolf-Phillips or the theory of categories

g)   German J. Bidart Campos

h)   Karlo Lowenstein; the ontological criteria

i)   Based on the democratic system and social reality

Current constitutionalism

Neoconstitutionalism

The constitution as a fundamental norm

Jurisprudence as a source of Law

The diverse ways in which the term jurisprudence is used

The Political Constitution of the United Mexican States

Structure of the constitution

Individual guarantees, fundamental rights, human rights or generation rights

Constitutional control; diffuse, closed and mixed

Processes of constitutional control

a)   Diffuse control: article 133

b)   Amparo (Protection judgment)

c)   Constitutional controversies

d)   Action on unconstitutionality

e)   Authority to assert jurisdiction

f)   The monitoring of the constitutionality of elections

g)   Political trial

h)   Constitutional Procedure of protection of human rights

The division of powers in the Mexican constitution

The constitution and international treaties

a)   The protection of human rights

b)   The obligation of tribunals to rule in accordance with signed human rights treaties, in the case of

c)   Constitutional interpretation of human rights: judgment of the Supreme Court

d)   Prohibition of signing treaties in terms of political prisoners or of local law or changes to human rights

e)   Transfer and exchange of prisoners

f)   Protection of the rights of children

g)   Actions on unconstitutionality

h)   The extradition of prisoners

Treaties between Mexico and the world on Human Rights

The reform of the constitution; the constituent power

Constituted power

Social facts as a source of the constitution

The legislative process

a)   Empowered to submit law initiatives

b)   Preferential initiatives

c)   Exclusive initiatives and concurrent initiatives

d)   Process of discussion

e)   Approval

f)   Publication

CHAPTER V:   The Application of Law: Main Problems

Establishing the existence of law

Judicial law: an eminently human act

Interpreting law: a theoretical or practical problem?

Antinomies

Legal gaps

Problems of application of the law in the time

Applicability of law

Retroactivity of the law, problems

Acquired rights and expectations of law

Application of the law in space: problems

Conflicts regarding territory

Conflicts of territory regarding the concurrence of powers

System of government and competences

Distribution of competences based on national territory

The interpretation of legal norms

Interpretation: a problem of knowledge

Interpretation: a brief historical evolution

Ancient stage

The Greeks

Rome

The Barbarians and the Feudal Era

The medieval period

Renaissance and the modern era

The interpretation of Law and the laws from a gnoseological perspective

Methods of interpretation of law

1.   Grammatical or literal

2.   Systematic interpretation

3.   Historical interpretation.

4.   Genetic interpretation

5.   Teleological interpretation

6.   Interpretation in accordance with the alternative use of the law.

7.   Analogical or extensive interpretation.

Main schools of interpretation of the law

Exegesis

Pandectist

Historicism

The Free School of Scientific Research of Law

The sociologist school

Pure theory of Law

Analytical theory

Interpretation of the law; the fallacies

Interpreting the law by way of the truth

Can we interpret the law?

Why should we interpret legal norms?

What is legal interpretation?

Which method do we need in the interpretation of the law?

Is interpreting unraveling the sense of the Law, evaluating it or creating it?

Which route or method should be used, to achieve the interpretation of the law?

a)   Are we aiming for a true or a false interpretation?

b)   Deciding which cognoscitive method we should use

c)   The use of logic

d)   What to interpret of the law?

What is the problem or question, of the legal norm which we need to interpret?

e)   The analysis of the norm

Demonstration of interpretation: methods

Obedience of the law: problems

What is obedience? Characteristics

Why do we have to obey the law?

Obedience of the law: main theories

a)   Based in divine authority: Sophocles

b)   In nature: Aristotle

c)   Natural law and reason: Thomas Aquinas

d)   Divine will: Ockham

e)   Punishment: Marsilius of Padua

f)   Pact: Hobbes, Rousseau, Spinoza

g)   Natural act of usefulness: Hume

h)   Coaction: Kant

i)   Sovereignty: Austin

j)   The law: Kelsen

k)   Threat leading to respect of authority: Hart

What is disobedience of the law?

Why is disobedience harmful?

Does the right do disobey the law exist?

Do we have to obey all laws, including those which are absurd?

Should the law always be fulfilled?

Should we obey a norm which is not law?

CHAPTER VI:   Justice

Why justice in the science of Law

Greece:

Plato: Justice as an ideal

Aristotle: justice as a virtue

Rome: pragmatism of justice

Christianity: divine justice

The byzantine era

St. Isidore of Seville: Ius: the genus of law

Thomas Aquinas: justice as a rational and objective virtue

Martin Luther: the division of justice into human and divine justice

John Calvin: human justice derives from the law

Thomas Hobbes: justice is that imparted by the State

David Hume: Justice as a utilitarian artifice

Gottfried Wilhelm Leibniz: reason is justice

Montesquieu: justice is a relation

Jean Jacques Rousseau: justice derives from the social contract

Immanuel Kant: liberty determines justice

Hans Kelsen: Law without justice

Arthur Schopenhauer: anti-justice

Friedrich Karl von Savigny: absent justice

Rodolfo Stammler: justice subject to unitary thought

Giorgio del Vecchio: the State of justice

H. L. A Hart: the norms with at least a minimum of justice

John Rawls: justice, the first virtue of society

What is justice?

Justice as a human act and virtue

Justice is founded in reality

Is justice theory or practice, value or action?

Justice and legal science

Justice ontologically

Justice: essence or existence, principle or act

Justice: to give each man his due

Justice, morality and ethics

Justice and entitlements or personal rights

Justice and natural law

Justice and equity

Equity, justice and law

Justice: a property of the legal norm

Justice, merit and demerit

Justice through its causes

Perfect justice

Imperfect justice

Commutative and distributive justice

The relation of justice with the truth

Injustice

Reason resolves the just act

Bibliography

DEDICATION

T O LUPITA SERNA my wife, who also accompanied me in this adventure. With all affection for my students, that knowing the Law make them virtuous of justice.

PRESENTATION

G OOD LAWYERS ARE necessary now more than ever. These times present revolutionary changes, however, some fundamental aspects remain unchanged. The necessity for Law does not change although the approach to the question of Law may change. It is pertinent that lawyers, perhaps laymen, too know and understand certain basic issues.

These fundamental issues are the subject of this book.

The basic concepts and notions that a student of Law should know are herein contained, approached generally from an Aristotelian-Thomist position.

In the chapters that integrate this book, the author delves into history and tradition, but also considers modern viewpoints, to describe the different theories on the science of Law, and supports his exposition with gnoseology and philosophy to provide a fuller answer to the basic questions of the knowledge of Law.

Personal rights or entitlements, constitutional law, justice, the application of the law, its sanctions, are some of the topics covered in this profound description, certainly a magnificent opus on this critical subject.

May this introduction create a deeper understanding of the science of Law, to have good lawyers, good people, for the good of all peoples.

Phd. Armando Villanueva

Director de la Facultad de Filosofía y Letras

Universidad Autónoma de Chihuahua

AS AN INTRODUCTION

G RADUATES OF NEW generations of lawyers often do not respond well to basic questions such as, what is the law and why it is, with which this implies in professional life.

Therefore, the subject of Introduction to the Study of Law, today retakes its importance. Having a solid academic base is the biggest challenge faced by undergraduates when they travel through schools or law schools, since it is the center of their training.

With this concern, I wrote this book. From the Aristotelian-Thomist perspective the main and most modern theories of law are analyzed, in an academic world where relativism and skepticism prevail.

There is special support from gnoseology, philosophy, history and logic, to offer the best possible answer to the problem of knowledge, focused on legal reflection.

Topics such as the science of law and its foundations, law, justice, facultative rights, common good and its main issues, are addressed from legal science; the knowledge of things by their causes, Aristotle defined.

From experience as a teacher, I am convinced that the students have great capacity to face the greatest intellectual challenges in the search for their professional training; there is no reason to consider that they can not learn the depths of the legal essence.

This work seeks only to be a modest contribution, more than many, to the good training of law graduates.

CHAPTER I

The Science of Law

Looking for a profound and true response to the question: What is law?

A PPROACHING THE SCIENTIFIC study of law means resolving the problem of its being, its essence and existence; its justification, foundation, classification and aims.

By analyzing the courses of study of the main Latin American universities offering law degrees, we can observe there in the themes which concern the professors, looking to help their students understand the subject of the Introduction to the Study of Law, which are as follows: the concept, objective, method of study, application and of course the problem of justice.

In a chaotic academic environment, we often even find the teaching of law by way of several theories within the same schools, adding further confusion to the subject for students anxious to learn and to embark on their professional careers, in search of success.

This scenario is nothing new in terms of the science of law, the age-old discussion of pre-classical Greeks on the hierarchy of laws, is, for example, as relevant now as it was then, but now there are differences of degree rather than of essence and, as such, at some point one school of thought will predominate and at another point another. But law seems condemned to never definitely resolve its own case: that of reaching a universally accepted verdict on what it actually is.

The impact of this dispute, in contrast with that of the hard sciences, has been felt from the exalted cases of justice and order, to the most terrible aberrations, injustices and each of those in favour of the latter and their followers declare the results to be legal, valid or just.

But why is it that in the twenty first century, we are still seeing powerful conflicts between law scholars as regards its conception?

Why have we not been able to accept just one single concept of law?

Why, moreover, can we not even accept a common method of investigation?

To a large extent it is because we have not considered legal gnoseology, the area of philosophy which studies the principles and foundations of knowledge; we forget about it and as such we lawyers move straight to the study of legal knowledge without knowing what knowledge is, what are its foundation, principles and processes.

Often, in the initial classes of the Introduction to the Study of Law, I ask my students why they came to university, the large majority reply in order to learn about the law, in order to…

Then I ask them to give me a definition of knowledge… They often do not know. I point out to them, so that they may then reflect, that they will be spending nearly five years of their lives on the search for knowledge and therefore, it is important to dominate the basics of this procedure.

This can, of course, also be applied, if valid, to many professors of law. Some will say that the problem is one of philosophy, of gnoseology, and that is not what they teach and what is important is law… what is certain is that we need a clear vision of the gnoseological problem.

It would seem simple but it is not: pre-Socratic philosophers as well as looking at the problem of being, of the world and of man, looked at the question of knowledge, and they concluded that, they should first explain knowledge because only by starting from that point could we have answers to the other philosophical questions.

Law is not exempt from the gnoseological approach. The main academics of the science of law tackle it, or at least outline a platform from which they justify or explain their positions.

There are theories which deny the possibility of knowledge, others partly accept this Copernican turn such as that of Kant, who confirmed that we know the phenomenon but not the noumenon; that is to say the being as it presents itself in our intellects, but not its essence.

Sextus Empiricus (Greece, 200 BC)¹ created the first available classification on this problem of access to knowledge and thence truth, signaling the philosophical sects which existed on the subject and dividing them into three:

1) Those who believe they have discovered the truth, or dogmatists, such as Aristotle; the Epicureans and the Stoics.

2) That of those who believe that the truth cannot be known or be apprehended, such as the academics.

3) That of those who are still investigating, such as the Sceptics.

Ferrater Mora gives us a classification of the contemporary philosophical schools of thought, expressions of thought that have some perception on knowledge, which he considers, with intellectual honesty, reasonably incomplete, without that meaning that we can simply sign up any philosopher or philosophical work, placing them into one of the indicated trends: 1) remnants of idealism. 2) personalism 3) realism in various forms. 4) naturalism 5) historicism 6) immanentism, neutralism, conventionalism, evolutionism, emergentism, pragmatism and operationism 7) intuitionism 8) philosophy or philosophies of life 9) phenomenology 10) existentialism and philosophies of existence. 11) logical positivism 12) philosophical analysis (formalist or linguistic) 13) theories of objects 14) neo-scholasticism 15) Marxism and neo-Marxism 16) structuralism.²

The problem of knowledge is, therefore, on the table and we can’t set it aside lest we risk falling in serious contradictions and deficiencies; an introduction to the study of law should at least pose the problem. How to solve it will be your concept of law.

Does Law exist? If it exists, what is it? Can we know it?

These were the questions I asked in my book Hacia el Derecho Verdadero³, which seeks to give an answer to what a true law is.

Some professors confirm that trying to explain these questions to students who have just started their major, is a lot; that asking for a profound response is too much. They say that the students have neither the experience nor the knowledge to learn it, that they will come across it when studying philosophy, if it is that they are studying philosophy, because in some schools it is not taught and in others it is an elective course.

I would say to them, that my experience in the classroom tells me, that we often underestimate the immense capacity of our students, and that even if they have had no academic contact with logic, philosophy in general or of gnoseology itself, this is no impediment to them learning the fundamental vision of law, its essential sense. As Jorge R. Tagle said:

Philosophical knowledge of the law means knowing radically what it is, posing the problem of its authentic and strict existence and of its sense. Just by asking the question about law’s being, brings up the problem of what it is that justifies it, and if we want to see how law’s being is linked with the legal ideal and with justice, we will realize that this problem is one of human life, of the order of the spirit, and that mere confirmation of it is not sufficient but rather it requires appraisement and justification.⁴

I have been pleasantly surprised by the capacity and quality of the students who, with enthusiasm and dedication, present investigative work, sometimes as if they were experts; the myth that the student has not the capacity to understand the essence of Law is shattered.

A lawyer, independent of the activity they carry out, should at least know what law is and demonstrate its existence.

Let us ask students in their final year or recent graduates about their concept of law and we will see that they often struggle, they give us some limited explanation, others straight out say it does not interest them, they make up the rows of lawyers who don’t know law, preoccupied with the here and now, by what the law says, whose articles they cannot properly understand, if they do not grasp its essence.

And when we talked of essence, we referred first to the necessity of demonstrating the existence of that which is law, explaining why it is and how it differs from the rest; the knowledge of things through their causes, as Aristotle wrote when defining science. Why it is law and not biology or why not mathematics, ethics or philosophy…?

That is the crux of the concept of Law.

The juridical being or entity, the essence and the reality: the basic points

If we say there is something, we first need to demonstrate that this something exists, as is obvious, in order to move on from there to being able to explain its essential characteristics. This is a basic task of Law scholars.

This entity or being, material or immaterial reality, constitutes the pillar of any knowledge; something has to exist in order that we can know it, because nothingness is not and, as such, it is impossible to know it or predicate anything about it. What is false simply cannot be demonstrated nor even an opinion be given about it.

The entity or being is, in general, material or immaterial. Law falls into the latter category, which will be proven later on; the entity is real or it is a possible proposition, which is commonly known as an entity of reason, but of course as Mercier tells us, it is linked to reality as a possible entity, as an essence.⁵

This element of existence, entity, being or ens, predicable entity, is completely fundamental, not just for law but for all science, given that this is the cornerstone of the principle of identity; the entity is and cannot not be, as Aristotle wrote, otherwise we would be repeating the same thing, as Mercier points out: laws, be they logical, be they mathematical, always add something to the principle of identity; otherwise they would be nothing more than sterile tautologies.⁶

Law, like any other science, or knowledge, even if it is not scientific, should start from reality, from an ontological vision such as essence, the being; it is absurd to want to start from unreality, from that which does not exist, from words alone. This topic undoubtedly has great transcendence as we will see later on, as there are laws or norms which are actually sustained in inexistence, even elevated to constitutional standing.

Knowledge of Law as a science

The discoveries of science are precisely that: the general, universal qualities applicable to the subject being studied, in this case law, the legal entity; what Aristotle said is reiterative: that the particular does not make science. Aristotle also writes that an entity has an infinite amount of accidents and, for this reason, no art or science considers the entity as accident, except the Sophistic school of thought.⁷

The essence, either general or universal, known as the genus, is the principal object of scientific knowledge, it gives unity to the measurement, it subordinates its group, so, if it disappears, the measurement we apply is useless. The genus allows us to find out a lot of things by way of just one thing, just as, when we speak of a norm, independent of its definition or application, we understand that it gives certain order in all cases, not one specific case; if we remove the order, the norm disappears.

"Generality gives us the idea of universality, to which all similar things we know are subordinated. The law, as a consequence, has a genus, which, in this case, would be the measurement, the ordering as genus. Justice’s genus would be virtue; law’s genus, in the strictest sense, would be power and knowledge, understanding, Aristotle says.⁸

How can the existence of the legal entity and its essence be demonstrated?

The demonstration of the essence, of the legal entity, for the purpose of the science of law can only be achieved through reason, because objects demonstrate themselves in accordance with their nature. If we want to prove the existence of a mineral, a car or a fish, we have to place it before our eyes, or use another physical proof which its material nature allows.

In the case of law, or of metaphysical sciences, the method or manner of demonstration is via reason, because only intelligence and reasoning will allow us to discover the legal entity, its properties, justifications and ends. When we talk about intelligence as the instrument of rationality, it is important to point out that we are not referring to intelligence as a faculty, as that is the subject of another discipline of study (– psychology–), and in the terms of the process of reasoning, this falls under the discipline of logic:

We should not confuse essences with ideas, they are different, as Thomas Aquinas says:

By ideas are understood the forms of other things, existing apart from the things themselves. Now the form of anything existing apart from the thing itself, can be for one of two ends: either to be the type of that of which it is called the form, or to be the principle of the knowledge of that thing, inasmuch as the forms of things knowable are said to be in him who knows them. In either case we must suppose ideas. [Summa Theologiae: Part I, q.15.a.1]⁹.

As well as this, the process of human knowledge begins with the universal and goes on to the particular, from concept to judgment and then on to reasoning. Wanting to avoid or eliminate universal things is a serious mistake in scientific knowledge.

The entity is the first thing which human beings are aware of. Thomas Aquinas says that Now as being is simply the first thing that falls under the apprehension, so the good is the first thing that falls under the apprehension of the practical reason, which is directed to action: since every agent acts for an end under the aspect of good. Part 1 of second part, q. 94, a.2.¹⁰

Gardeil also makes it clear to us, that the spirit is ready to apprehend the essence of things as its first action, the definition which is expressed by way of the concept, which is helped by way of division and composition, so that:

Division will allow the distinguishing and ordering of the parts which make up the confused wholes which are presented to our spirit, whereas the definition will outline each of the essences and will clearly manifest their nature. At the end of this work of division and definition, supposing that the objective can be reached, the notions will present themselves to us ordered and classified, each part distinguishing itself from the rest and evident in itself.¹¹

An ontological, essential vision of law is fundamental to our knowledge of this science. Efraín González tells us that The position we adopt faced with the real being is decisive to the philosophical understanding of law.¹²

It is precisely in this scientific vision of the essence, of the fundamental reality of law, that we can really understand its nature, properties, the solution to the fundamental questions; Cristobal Orrego says on the subject that¹³ the big legal problems never lie in constitutions, codes or laws, in judge´s decisions or in other similar manifestations of positive law with which all jurists work, and neither have their solutions been found therein. The jurists know very well that the root of their common certainties and beliefs, just like the root of their doubts and controversies, lie somewhere else. In order to clarify what really units or divides them it is necessary to go a lot deeper or, what amounts to the same, go a lot higher, into that which does not seem clear.

How do we separate the general entity from the legal entity?

The answer can be found in metaphysics, the object of first philosophy (in accordance with the traditional division), which studies the being in its maximum expression. This coincides with the philosophy of law, but the latter adds the specific differences of the legal being, the differences which identify between the entire science of law, the law itself, facultative rights, common good and justice, as will be explained further on.

We should highlight that the essence is, also considered as the nature of the being, that an essential legal being can become a specific norm and then we talk about the existence of the entity and establish a concept or entity of reason. Mercier explains it to us thus:

We can, in effect, either consider or not consider the existence of a being, or consider it as not existing; in other words, intelligence can either limit itself to not including in its concept the reason of existence, or exclude that reason from the same. In the first case, the abstract act of intelligence is an act of mental precision, in the second case, it is an act of exclusion. The conclusion of the first abstraction is a real essence; the conclusion of the second is the essence considered as not existing, the essence or the possible being.

The possible being opposes, on the one hand, to the actual being, and, on the other hand, to the being of reason. The possible being does not exist in nature, and in this it distinguishes itself from the actual being, but it could exist in nature, and in that it distinguishes itself from the being of reason.¹⁴

Thus, for example, one thing which is essential to the law is ordering, amongst other things. When it is instituted in a, let’s say, constitutional order, it is a law. Moreover, we will have the concept of the law and also talk about the possibilities of the law itself; from this we will ontologically have the essence, the existence and the entity of reason or concept and the possible entity.

Order: essence.

Applicable law: existence.

Concept of law: entity of reason.

Expectations of modification: possible entity.

If we think about the characteristics of Napoleon, we would say that he was a conqueror, great military strategist, leader and valiant, amongst other things. We are describing the essence of a conqueror: but does Napoleon exist? The answer is no. The nature of conqueror was actualized in Napoleon when he was alive. The essence lives on, Napoleon does not: we can also use the concept of conqueror as an entity of reason, or speculate on what would happen if he were to carry out such an enormous feat in our times, as a possible entity.

We should distinguish the essence of a conqueror, or the essence of the law; Napoleon, or a specific constitutional norm and the concepts, from which both of these are derived, come from something real, which is not contradictory to them, and this also applicable to the possible entity.

Mercier explains this relation to us:

Nevertheless, the abstract character of the elements, through which we know about the essence of the being-substance, should not drive us to error. As an abstract thing, the essence does not exist further than in abstract thought. In nature, the reality of the essence is accompanied by its particular determining factors. The essence exists by itself. The essence is, in reality, concrete and individual. Theere are singular, quantitative and qualitative determining factors which appear together with the act of existence.¹⁵

These points made about essence, existence and entity of reason have to be clarified, because any confusion or ignorance about them will result in endless byzantine battles within legal academia.

Aristotle himself distinguishes the definitions of the being or entity, as being constituted in the first object of intelligence, as something which awakens intellectual life, the composed being, the existing substance and the act through which it exists.

In contrast to what the extreme idealists believe, the being or entity is real, it exists, independently of whether we consider it or not in our thoughts, in order to find it, to consider abstractly its essential elements and conceptualize it.

The legal entity exists. It is not just a name pulled out of nothing, or an entity of reason with no foundation in reality which we can observe as an act of intelligence. We have to study it such because such is how the process of human knowledge works.

What is the relationship between the legal entity, the substance and the accident?

The separation of the substance, accident and legal entity is a complex subject within the philosophy of law. Let’s try to make clear their differences.

Ontologically, existentially, the substance is the being, the real thing, the actualization of the essence. Aristotle divides existence into substance and accident, the former is, in itself, the principle of operation; accidents are in other things as subjects of inhesion, that is to say they live in other things, depend on other things.

The substance is one and the accidents are nine in the Aristotelian classification; quantity, place, time, quality, action, passion, situation, habit and relation; in the last one law is ontologically situated; relation is considered as the accident of accidents.

Substance and accident really exist, the basic difference is that the first does so in itself, as the first principle of action, and the second is in another, as the subject of inhesion. Together they determine the being: substance and accident are the categories. In themselves, separately, they do not qualify, but they are predicates of substance. Mercier points out Accidents add a real perfection to substance and, as a consequence, we attribute a real composition to the set of these accidents and the substance determined by them.¹⁶

Accidents are not substance but they are subordinated to the latter. Not understanding this, or denying it, has driven the idealists to pantheism, by declaring that everything is substance, and driven the materialists to agnosticism, by denying the knowledge of substance and only acknowledging accidents, such is the case with Kant, who accepts the phenomenon only in space and time.

Once the being is acknowledged, its existence; the entity, the rational position of the human being faced with this truth is, according to Mercier¹⁷:

1. True judgment, when the spirit firmly adheres to what it knows to be true, the syllogism which leads to certainty is demonstration.

2. Whilst the spirit is suspended between two opposing judgments without deciding resolutely on either of them, we say that it doubts. When it moves towards one of the two sides but without accepting it completely, excluding the opposite side, it has an opinion. So, the syllogism is called probable when it produces this state of opinion and its probability is directly related to the force of motives which solicit the partial adhesion of the spirit.

3. The opposite of the truth, judgment’s opposition to the known thing, is error; the syllogisms which lead to it are called sophistical.

Learning to understand Law

It was pointed out in earlier paragraphs that it is necessary for law scholars to first resolve the problem of knowledge before tackling the question of law.

Now we will take this further: without the basic principles of gnoseology, we cannot have a clear vision of law; we will make a lot of errors. I have heard the Mexican philosopher Mauricio Beuchot, vehemently state that without gnoseology there is no philosophy, and he is right.

The consolidated legal tendencies are based, undoubtedly, in a conception of the world, of knowledge, this is undisputable; the great philosophers of law have their own way of resolving this paradox. On the other hand, those who may well achieve great fame, but lack any solid basis, sooner or later fall into contradictions, and often change their view: Witgensttein, Kelsen, H.L.A. Hart, Dworkin, are just some examples.

Efraín González says on the subject¹⁸ that, A lot of imprecision in legal knowledge could be avoided by the correct relation between ontology and logic, with the proper application of the five fundamental forms of predication.

Manuel Atienza¹⁹, in his theory of Law as Argument, establishes those questions which are necessary to resolve, amongst others: How can Law be known? How can legal knowledge be built up? And what is the relationship between the operations of production, interpretation and application of law?

Just as with other sciences or of strict methods of knowledge, Cantero Arriola and Victor Amandi²⁰ establish clear outlines of the object and of the method; as well as non mystification, they draw up essential epistemological and methodological tenets.

Of course we are not going to embark ourselves, on an in depth study of gnoseology, we will look into it just as much as is necessary, so that law students are aware of the main trends.

It is not as complicated, as some of my fellow professors think; the student is the Aristotelian tabula rasa, desiring to learn and to demonstrate what they have learnt, so let us guide them and they will have a solid legal culture.

It is necessary for us to distinguish knowledge in general from logic, the latter is the reflexive study of the order that has to rule in judgments, in reasoning and in the constructions of wholes, which lead to knowledge of the truth,²¹ in accordance with Mercier’s definition, thus separating the process of reasoning, the object of logic, from knowledge in itself.

The Mexican philosopher, Cristóbal Orrego,²² highlights the relation between the knowledge of law and the exterior reality, which Does not imply a digression from the ideals of justice: but rather an indication of what is just. He is not talking about what ought to be, but rather of what actually is: a thing belongs to a certain person. Certainly, the consequence is a what ought to be: each person should be given what is theirs. But the real role of the wisdom of law is to know what is theirs, to rationally prevail over or establish what should be given and nothing more. It falls to justice -moral virtue not intellectual virtue- to give it. As such, jurisprudence is the knowledge of law, the object of justice.

The view of Aristotle/Thomas Aquinas is that, knowledge is the mental apprehension of reality.

But man seeks knowledge of things, as they are and he avoids falsity which intellectually disgusts him; the good which knowledge pursues is the truth. Gabriel Ferrer Aloy²³ adds that the capacity to know makes man a being in pursuit of the truth, and makes the truth the central question of the human being.

It is known, that the known thing is in the knower according to his mode of knowing." (Summa Theologicae Part I, q 12, article 4)²⁴. We are not angels nor cherubs which have knowledge as an immediate result of our existence, and neither, as Plato said, is knowledge in the being and it is a question of guiding the being with the right questions in order that it can express this knowledge; the humans learn discursively.

Our learning is not God-given, as it is in the angels, rather it is a process; from our first impression we pick up certain notions of things, we identify the something we have in front of us in order to start to develop our cognitive activity.

In the case of the first principles, as they are ordained to us, according to Regis Jolivet,²⁵ they are generated as follows: Man naturally acquires, that is to say by the spontaneous and necessary activity of reason, a certain number of notions and truths which form the basis of all his knowledge, chronologically and logically.

This union of notions and judgments is what modern philosophers call reason.

The primary notions are those of being, of cause, of substance and of end.

We should also highlight, in contrast with the beliefs of the materialists in their various expressions, that knowledge is not an act of the corporeal organ. That:

Wherefore the intellect naturally knows natures which exist only in individual matter; not as they are in such individual matter, but according as they are abstracted therefrom by the considering act of the intellect; hence it follows that through the intellect we can understand these objects as universal; and this is beyond the power of the sense, (Summa Theologicae, Part 1, q. 12, a.4.).²⁶

This comment is very important; it is a function of the spirit, which uses the senses. We should remember the classic example that sight does not take place in the eye, which only serves to transmit the images like a video camera, but that it is the intellect which decodifies and learns, which explains why much of the images, which the eye transmits are not retained because we are distracted and the intellect does not capture them. The same thing happens with the other senses.

But without the senses neither do we have knowledge, such as, for example, a person who is blind or deaf at birth, will never know colours, or speak, because in the first case they cannot imagine them and, in the second, it will be impossible for them to repeat the sounds.

The senses only give us the particular, whereas knowledge deals with what is universal, to the concept, judgment and reasoning, a process that allows us to discover new things.

The intelligible species is to the intellect what the sensible species is to the sense. But the sensible species is not what is perceived, but rather that by which sense perceives. Therefore, the intelligible species is not what we feel, rather, the way that we learn. [Summa Theologiae, Part I, q.85, a.2].²⁷

From knowledge comes apprehension, judgment, reasoning, which the senses do not bring us. Let’s look at the process of knowledge and I chose that of Mercier,²⁸ who is accepted in the Aristotelian/Thomist platform. There are other descriptions but this one is adequate. Neither will we analyze more descriptions as it would serve only to increase the volume of this study and I believe it will be sufficient for our objective.

I. Understanding can cover different forms.

1. When the spirit considers a thing independently of how many things surround it, we say that it is giving it its attention.

2. This attention is aimed at just one characteristic of the object, independently of those characteristics which come with it, or on the whole of the elements which constitute the essence of the object, but disregarding the characteristics which make it individual in reality: these acts of the spirit are called abstraction.

3. Abstraction is the foundation of generalization.

4. Abstraction operates in the spirit the analysis or decomposition of the elements of the object which is already known.

5. When the spirit brings together the features which were previously isolated, it makes a synthesis.

6. When the spirit represents successively two objects between which a relation, understanding, or better, double-understanding is perceived, is called comparison.

7. Perception of an existing reality is intuition. It is called perception in contrast to the conception of things called ideals, that is to say which are considered apart from their existence.

8. When the objective of intelligence is the acts of our soul, mainly the spiritual acts, understanding takes the name of conscience.

9. Distinction is a mental act through which we represent an object realizing that it is not the same as another.

II. Judgment consists of attributing an object to another, in seeing whether the objects which were previously understood fit together or not. It is an act of understanding, the formal objective of which is the identity of the terms of two earlier understandings.

III. Reasoning is a concatenation of judgments. Reason compares two extreme opposite terms whose identity is not immediately clear using the same middle term, in order to see, by way of this comparison if they are identical or not.

The acts of understanding in their multiple forms, judgment and reasoning, constitute in the end, one and the same act: the understanding or the vision of what a thing is depends on just one cognitive faculty known interchangeably as intelligence, intellect or reason.

We should reiterate that knowledge is the mental apprehension of reality. It is not constructed, created, nor is it invented, it is discovered by way of a discursive process; this is our cognitive nature, the human being has no other choice. Rational knowledge is what elevates man in nature, it is what distinguishes him; without knowledge human beings would just be one more animal in the universe.

The first principles of reason allow man to distinguish between good and evil, in order to be able to comply with laws, be aware of himself and his knowledge, discover causes in general, create order via reason, communicate with his peers, to observe what remains from what is mutable, aspire to goods, reject evil, distinguish the universal from the particular, choose his desires, use his knowledge in a reflexive manner or put it into practice.

Knowledge makes human beings perfect and elevates them in their cognitive vastness.

General classification of knowledge

If knowledge is the mental apprehension of reality, the latter can come to us in various ways, such as

a) The evidence itself of the object, first impression

b) By experimental demonstration

c) Derived from the explanation of its underlying causes and first principles

d) By faith, or the revealed truth.

A large part of the errors in the academic world of law are due to not distinguishing between one knowledge and another; by not making clear whether it is philosophical, scientific in the strict sense, or giving scientific validity to simple theories, perception or apprehension.

What is important is that the knowledge be true, the truth is the highest good to which aspires the intellect which repudiates what is false. The same piece of knowledge can be approached in several ways and if it is true, the truth will prevail in all forms.

A traditional classification of knowledge in general divides it as follows:

1.- Vulgar o common

2.- Scientific

3.- Philosophical

4.- Theological

This is how we will study it, recognizing that there are many classifications and sub-classifications of sciences. Aristotle himself divided science into physical and transphysical, which Andronicus of Rhodes then changed to physical and metaphysical, which was then adopted by all authors on the matter.

This systematization or ordering of certain knowledge is normal in the intellectual process, which tends to compose and divide what it has learnt. In our subject, juridical should clarify when we are dealing with vulgar, scientific, philosophical or theological knowledge or when it is simple intuition, understanding, judgment or reasoning.

1.- Common knowledge

Knowledge which is acquired in an empirical manner, based on first-hand experience; it can be intuition or simple perception. Our intellect captures the first essence of the object and its existence. It is still mental understanding, it does not require demonstration, is in itself just by the evidence, to which intelligence surrenders.

During the day, we can confirm that the light of the sun covers part of the earth; this is true but it is common knowledge, it does not require or demand any sort of demonstration.

We cannot reject this sort of common knowledge, man should use it to contrast it and demonstrate whether or not it is true, but, in any case, just as with any theoretical hypothesis of law, regard it as such, reasonably, using first principles. People naturally have a clear idea of justice, of order, of good, etc.

An ordinary housewife, will not need to be an expert in taxes to work out that a consumer tax is unjust, fair or unfair. Nor does one have to be an expert in Criminal Law to realize whether a sentence is excessive or limited in terms of the crime committed, or to detect that a law is an aberration against nature; this is a natural conclusion based solely on first principles.

2.- Scientific knowledge

The classic Aristotelian definition is: the knowledge of things through their causes. It is also accepted as having an object actually present (reality, the entity) intentionally in the intellect. Science is also considered as being the whole of demonstrated knowledge, each part with its own object and method, duly organized and systematized.

Many definitions of science exist which more or less coincide. We will use Mercier’s²⁹ here as a reference: A set of evident and certain propositions; necessary and universal, systematically organized, mediately or immediately deducted from the nature of the subject and which give intrinsic reason to its properties and the laws of its action.

Thus, the propositions of a science should be:

1. Objectively evident, that is to say, manifestly true.

2. Certain. Knowledge by faith which, by definition, is formally evident is not, as faith, an object of science. Scientific certainty is the fruit of reflexive thought.

3. Necessary, universal. Collecting particular facts is not creating science; at the most, it is preparing it. The wise man wants to know what things are independently of their contingent and variable circumstances; he wants to know what the law of their action is. There is no science other than what is universal; this was Aristotle’s recurring theme. The particular is not science.

Let’s look here at the Aristotelian quote:

Let us admit, on the other hand, that there is truly something outside of the whole of the attribute and the substance. Let us admit that there are species. But, is the species something which exists outside of all objects or is it only outside of some, without being outside of others, or is it outside of none?

Would we therefore say that there is nothing outside of particular things? In that case, there would be nothing intelligible, there would be only sensible objects; there would be no science of anything given that sensible knowledge would not be called science. Likewise nothing would be eternal or immobile because all sensible objects are subject to destruction and in movement.³⁰

Thus we would conclude there is no scientific knowledge:

a) When no intellectual and conscious understanding exists.

b) When what is learned is not real, or is not founded in the same ontological reality of the being.

c) When, where a thing exists, we give it a meaning opposite to its reality, or where we attribute to it, causes or effects which don’t correspond to it.

d) When the conclusions are not necessary, that’s to say exactly derived from the object.

e) When we don’t offer a universal explanation applicable to all things of the same genus or species.

f) When we cannot demonstrate the validity of the causes, or the conclusions.

The fact that a piece of knowledge is not scientific does not necessarily mean it is false; some materialists have wrongly tried to give exclusivity to the truth of material scientific knowledge obtained, as the result of experiment and other movements will not even admit it, either as a science, or as being true.

Common knowledge can be true by way of simple evidence without the need for demonstration; we do not need a meteorological study to know whether it is snowing in front of our house or not. The same is true for theological knowledge, when it bases its foundation in the existence of the Revealed Truth; philosophical knowledge is true where it is demonstrable via the first principles and underlying causes, even it if is not materially demonstrable because it is impossible to do so when the object is immaterial.

Knowledge of Law, relative or